Liz Fisher: Transparency

‘We want to be the most open and transparent government in the world’ is the first line of the website for the Prime Minister’s Office dedicated to the issue of transparency (http://transparency.number10.gov.uk/) and in the time since the Coalition government has been in office, the need for transparency has become a common refrain. Transparency is an aspiration that few would disagree with and Cameron’s statement echoes Obama’s Open Government Initiative in the US (http://www.whitehouse.gov/open) and numerous other proposals across the world. Nor is it something particularly new in the UK. Over the last decade there have been many legal and policy reforms dedicated to improving transparency. Some of these have been overarching such as the Freedom of Information Act 2000 but many have been far more specific: Environmental Information Regulations 2004; International Development (Reporting and Transparency) Act 2006; and the Public Contracts Regulations 2006. Likewise, institutions such as the National Institute for Health and Clinical Excellence (NICE) have been created so that they operate transparently. Pieces of legislation such as the Constitutional Reform and Governance Act 2010 are also promoting transparency in a range of different government activities. Yet while most agree that transparency is ‘good’ there has been very little substantive analysis of the nature of these reforms. That is a problem – not because transparency is ‘bad’ but because transparency is far more complex than a lot of current discourse presumes it to be.

First, there are many different reasons that transparency is being promoted. For example David Cameron’s letter to government departments on opening up data stated that greater transparency would:

There are lots of different goals, assumptions, and expectations in there – political accountability, administrative accountability, deficit reduction, better financial management, economic opportunities, non-governmental involvement, and technological innovation. And that is just one statement. Look right across government and one can see a range of other hopes about transparency – market efficiency, building trust, stopping corruption, education, encouraging participation, stopping mistakes, giving people choice and encouraging self-discipline. Some of these goals do overlap but the reality is that transparency is being promoted for many different reasons. There may general agreement that transparency is ‘good’ but different people think it is ‘good’ for different and sometimes contradictory reasons.

Second, and even more significantly, transparency mechanisms themselves are complex and multi-faceted. No transparency mechanism is about making everything visible all of the time. Decisions have to be made about what is to be made visible, when it is to be visible (and for how long), and what the triggers for making something visible are. Thus for example, freedom of information legislation concerns making ‘information’ visible when there is a request. In contrast, financial accounting tends to be in the form of regular reporting, while Registers of Member’s Interests are often being constantly updated. Likewise, different transparency mechanisms will have different users, different institutional apparatuses for their operation, and lead to different consequences. Thus, for example inspectorates a very well entrenched form of making institutions transparent and require a specialized apparatus to do so. Yet different inspectorates have different expected end users. Thus one of the functions of OFSTED reports is producing information for parents who are considering whether to send their child to a school but Her Majesty’s Inspectorate of Prisons for England and Wales is obviously not serving that sort of function. It is also the case, that many of these transparency mechanisms require the creation of something so as to make it transparent – whether it be a report, an account, or an assessment.

Third, transparency has a range of different implications. There are many that could be highlighted but here it is useful to note those most significant to public lawyers. Most obviously, these mechanisms give rise to an administrative law of transparency. Thus, tribunals and courts have been busy dealing with questions about the operation and nature of transparency mechanisms and how they interrelate with other legal concepts and regimes. These questions may focus on the scope of a regime (e.g. Smartsource v Information Comimsisoner [2010] UKUT 415 (AAC) discussing what type of bodies the Environmental Information Regulations 1994 apply to) but also concern the nature of the judicial powers in regards to such mechanisms (OFCOM v Morrissey & the Information Commissioner [2011] UKUT 116 (AAC)). To put it another way, for transparency mechanisms to operate they need a body of legal practice and doctrine – such mechanisms are not self executing.

This is not the only implication of transparency mechanisms however. Perhaps more significantly, the more that is made visible the more that public law applies to. The commitment to transparency in NICE thus leads to administrative law challenges concerned with the transparency of the processes. Thus for example in Eisai Ltd, R (on the application of) v National Institute for Health and Clinical Excellence (NICE) [2008] EWCA Civ 438 (01 May 2008) the issue was whether it was procedurally unfair not to have access to a fully executable model as part of a transparent decision-making system. This is not an issue that judges are used to getting their heads around but it is a legal question that will naturally arise in a regime committed to transparency. There are also real practical consequences of transparency. In Luton Borough Council & Ors, R (on the application of) v Secretary of State for Education [2011] EWHC 217 (Admin) (11 February 2011) Mr Justice Holman noted that ‘the case generated about 7,500 pages of documents, complemented by two “core bundles” totalling about 840 pages and a further 460 pages of “court documents”. The skeleton arguments, supplemented by various additional notes and written submissions, amounted by the end to about 300 pages’ (para 7). Such large documentary records are inevitable in systems committed to transparency but such records also sit uncomfortably with current judicial review procedure.

Most significantly, making something visible does not mean that what is seen is understood. I learnt this lesson the very hard way when reading the BSE Inquiry Report and its evidentiary record. That Inquiry is a wonderful example of a transparency in action with all written and oral evidence available on the web (http://collections.europarchive.org/tna/20090505194948/http:/bseinquiry.gov.uk/report/index.htm). As such it is a fabulous research resource but it is one that took me over a year to actually make sense of because I needed to actually understand what I was reading, not only in terms of its contents but also how it related to its context. Another example of this can be seen in relation to the data that can be found on data.gov.uk. Most of it is pretty meaningless without any further understanding. Thus, to grasp the significance of the ‘real time energy use for Numbers 10, 11, 12 Downing St’ ( see http://data.gov.uk/dataset/real-time-energy-use-nos10-11-12-downing-street) there needs to be not only an understanding of typical energy use but also the nature of these buildings, the cost of that energy use, how it relates to past energy use, and what the other consequences of that energy use are.

Let me make it very clear I am not arguing that transparency is bad. Rather my argument is that transparency is complex and indeed the tendency of discourses about transparency to classify it as either ‘good’ or ‘bad’ is hiding that complexity. Now of course it could be argued that my tendency to highlight its complexity is just part of parcel of my tortured academic outlook but as clear from above, a failure to appreciate the complexity of transparency is really a failure to understand what it is and what it involves. A useful analogy here is with the different medical technologies and techniques we use for seeing inside the body such as x-rays, MRI scans, ultrasounds, blood tests, biopsies, and autopsies. These technologies play an important role in both aiding understanding about how the body works as well as providing a means of taking action. Yet these technologies have different strengths and weaknesses and are used for very different reasons (e.g. research and for diagnosing a range of health problems) and these will influence which mechanisms are used. You wouldn’t use an X-ray if you wanted to measure sugar levels in the blood for example. Part of why you will use these different technologies will also depend on issues to do with costs, ethics and practicalities. Moreover, each technique is a substantive technology itself, which is constantly evolving (take for example the recent development of 3D ultrasound). Far more importantly, the images from these technologies are rarely self explanatory – they need expertise and craft to read and they are often ambiguous. The inside of the body is not replete with little labels explaining exactly what is going on – the images need to be scrutinized carefully and interpreted. In light of all this, it is not surprising that the use of these various technologies are embedded in different professional and academic disciplines (e.g. radiology) and that within those disciplines there is a rich and nuanced discourse about when particular technologies should be used (see for example the range of guidelines on the Royal College of Radiology website – http://www.rcr.ac.uk/), the nature of such technologies, the expertise needed in using them, and the consequences of them. Recognizing all of this is not to damn or praise these medical technologies. Nor is it to say that these technologies should be just left to the experts – expertise may be needed to understand these images but that is not to say we should presume expertise is all knowing and that it should be completely deferred to. Rather my point is a different one. Making the inside of the human body visible is not just about getting hold of lots of X-ray machines or the like – it is far more complex.

In regards to the transparency of public administration that complexity is not just an abstract thing that I as an academic am getting all worked up about. It is very real. There are many different goals being pursued through transparency and some of them are arguably contradictory. Transparency mechanisms have many different facets and the courts and others are dealing with the consequences of transparency. The problem is that much of the discourse about transparency doesn’t touch on any of this in a sustained way. Academics and policy-makers need to broaden and deepen their understanding of transparency. They need to move away from a simplistic pro/anti debate and they need to see that transparency, like an ultrasound, is not a solution – an end point – a happy every after. Rather it’s a starting point that requires serious reflection about the intellectual and practical challenges it creates.

Dr Liz Fisher is Reader in Environmental Law, Corpus Christi College and Faculty of Law Oxford. The issues discussed in this piece are further elaborated upon in E Fisher, ‘Transparency and Administrative Law: A Critical Evaluation’ (2010) 63 Current Legal Problems 272-314.